Sick Pay and Pregnancy Accommodation Requirements for New York City

Transcription

1 Sick Pay and Pregnancy Accommodation Requirements for New York City Revised To Include 2014 Amendments Presented by: Fox Rothschild and the New York City Hospitality Alliance Monday February 24, 2014 Carolyn D. Richmond Fox Rothschild LLP 100 Park Avenue 15th Floor New York, NY T: Glenn S. Grindlinger Fox Rothschild LLP 100 Park Avenue 15th Floor New York, NY T: ACTIVE v1

2 1 Table of Contents Client Alert...Page 2 New York City Paid Sick Leave & Pregnancy Accommodation Q&A...Page 6 Pregnancy & Employment Rights Poster...Page 18 Attorney Profiles...Page 19 Fox Rothschild LLP 2014 Confidential

3 2 CLIENT ALERT New York City Requires Employers to Provide Paid Sick Days and to Accommodate Pregnant Employees By: Carolyn D. Richmond and Glenn S. Grindlinger On June 27, 2013, the New York City Council passed, over Mayor Michael Bloomberg s veto, the New York City Earned Sick Time Act (the Act ), which will require all New York City employers to provide their employees with sick leave and will require most New York City employers to provide paid sick leave. Following on the heels of the Act, on October 2, 2013, Mayor Michael Bloomberg signed into law an amendment to the New York City Human Rights Law ( CHRL ) that was unanimously passed by the New York City Council. This law requires employers with at least four employees within the City of New York to provide reasonable accommodations to pregnant employees. Both statutes are discussed below. Paid Sick Leave Under the Act, effective April 1, 2014, all New York City employers must provide at least forty hours of sick leave (i.e., five sick days) to their employees. For employers with 5 or more employees, the five sick days must be paid. Previously, there were provisions in the Act that only required employers with 20 or more employees to provide paid sick leave, but Mayor de Blasio eliminated this exception for small businesses. Accordingly, small businesses must be cognizant that shortly they could be required to provide paid sick leave to their employees. In determining whether an employer has more than 5, 15 or 20 employees, the Act requires a chain business to be treated as one large entity. A chain business is any employer that is part of a group of establishments that share a common owner or principal who owns at least 30% of each establishment where such establishments (i) engage in the same business or (ii) operate pursuant to a franchise agreement[.] For example, if a restaurateur owns two establishments under separate corporations each with 12 employees, the Act treats the two corporate entities as one employer with 24 employees. For those employers that are required to provide paid sick leave, the pay is based on the employee s wage rate in effect at the time that he or she takes sick leave. For those employees who receive most of their compensation in the form of gratuities, it appears that the Act only requires the employer to pay the employee his or her base wages. However, this means that if an employer takes a tip credit toward its minimum wage obligations, it would have to pay tipped employees who take leave under the law at the regular minimum wage, not the tipped minimum wage. At the commencement of employment or on the date that the law becomes effective, whichever is later, employees accrue sick leave at the rate of one hour of leave for every 30 hours of work. However, employees can only accrue up to 40 hours of leave per calendar year, which is any regular and consecutive 12-month period as determined by the employer. For those employees who are exempt from overtime, the Act assumes that such individuals work 40 hours per week.

4 3 Although, employees begin to accrue sick leave at the commencement of employment, they are not entitled to take such leave until they have been employed by the employer for 120 days. Therefore, even if an employee has accrued sick leave time, he or she may not take the leave until the employee has been employed for approximately four months. In addition, the Act states that upon the cessation of the employment relationship, the employer is not required to pay the departing employees for their accrued but unused sick leave. Further, at the end of each calendar year, the employer has a choice. The employer can either pay out all accrued but unused sick leave to the employees or the employer can permit employees to carry over accrued sick leave from year to year up to a maximum of 40 sick leave hours. However, if the employer pays out its employees at year end for accrued but unused sick leave, the employee must be permitted to take sick leave for up the number of hours that were paid out at year end before the employee has accrued that time in year two. For this reason, as a practical matter, most employers will not pay out accrued but unused sick leave at year end. Use of Sick Leave Employees may use accrued sick leave to care for themselves or a close family member. If the leave is foreseeable, the employer can require the employee to provide up to seven days advanced notice of the employee s intention to take accrued sick leave. If the leave is unforeseeable as will likely occur in the vast majority of cases the employer can require the employee to provide as much notice as is practicable. However, the term practicable is not defined in the Act. If an employee notifies the employer that he or she intends on taking sick leave under the Act, the employer cannot require the employee to find a replacement to cover the employee s shift as is common in the hospitality industry. Indeed, if an employer conditions the employee s use of sick leave on finding a replacement such a condition is a clear violation of the Act and would entitle the affected employee to damages. In addition, if an employee uses sick leave under the Act, the employer cannot require the employee to work additional time to make up for the taken leave time nor can the employer retaliate against the employee by disciplining, discharging, demoting, suspending, cutting hours, or otherwise taking an adverse employment action against the individual. When an employee has been on sick leave for more than three consecutive work days, the employer can require the employee to provide a note from a health care provider that confirms that the leave was authorized under the Act. Because, the Act states that the employer can request the note only after the employee has been out for more than three consecutive days, it is unlikely that the employer can request such a note when the employee has been out for less than three consecutive work days. Notice of Rights The Act also requires employers at the commencement of employment to provide employees with written notice of the employee s rights to sick leave, including the accrual and use of sick leave, the applicable calendar year as determined by the employer, the right to be free from retaliation, and the right to file a complaint with the New York City Department of Consumer Affairs. This notice must be provided in English and the employee s primary language. The Act also states that the notice may also be conspicuously posted at an employer s place of

5 4 business in an area accessible to employees. It is unclear whether the employer can post the notice in lieu of providing written notice to each employee at the commencement of employment. However, as these statutes are generally construed in favor of the employee, it is likely that the employer must provide written notice to each individual and in addition, at the employer s option, the employer can also post the notice. Other Employer Leave Policies If an employer provides at least 40 hours of other paid leave to its employees, such as paid time off, paid vacations, or paid personal days, and employees can use such paid leave to care for themselves or a close family member than the employer is not required to provide additional paid sick leave under the Act. Enforcement The Act will be enforced by the Department of Consumer Affairs, which will also have the authority to conduct investigations into alleged violations of the Act and to ensure employers are complying with the Act s requirements. Individuals have two years from the date that they knew or should have known of the alleged violation to file a complaint. If an employer violates the law, the penalties differ depending upon the type of violation. If an employer fails to provide paid sick leave to an employee (where such paid leave is required), the employee will be entitled to three times the wages that should have been paid or $250, whichever is greater. If an employee requests sick time and that request is unlawfully denied by the employer or the employer requires the employee to find a replacement to cover the employee s shift, the employee can recover $500. If an employer retaliates against the employee for exercising his or her rights under the Act, the employee is entitled to back pay and benefits, appropriate equitable relief (e.g., removal of warning, reinstatement) and $500, which is increased to $2,500 when the employee was unlawfully discharged. Further, the Department of Consumer Affairs can also recover civil penalties ranging from $500 to $1,000 for each violation of the Act. However, until October 1, 2014, fines will not be assessed against those employers with less than 20 employees; yet, aggrieved individuals can still recover three times their wages or $250, whichever is greater, from non-compliant employers with less than 20 employees. Pregnancy Accommodation Effective on January 30, 2014, New York City employers must provide reasonable accommodations to pregnant women and those who suffer medical conditions related to pregnancy and childbirth. Examples of such reasonable accommodations that are specifically referenced in the amendment include providing extra bathroom breaks, leave for a period of disability arising from childbirth, breaks to facilitate increased water intake, periodic rest for those who stand for long periods of time, and assistance with manual labor. The amendments states that [i]t is not the intent of the [New York City] Council to require such accommodations if their provision would cause an undue hardship in the conduct of an employer s business. Employers who want to take advantage of this exception would have the burden of proving that a proposed accommodation is not reasonable because it creates an undue hardship. Factors that are to be considered in determining whether there is an undue hardship on the employer include:

6 5 The nature and cost of the accommodation; The overall financial resources of the facility at which the employee works; The number of person employed at the facility where the employee works; The effect on expenses and resources or the impact of the proposed accommodation upon the operation of the facility; The overall financial resources of the employer; The overall size of the employer with respect to the number of persons it employs and their location; and The type of operation or operations of the employer, including the composition, structure and the functions of its workforce. In addition, employers must post a poster in the workplace information employees about this law and provide notice to employees about their right to be free from discrimination in relation to pregnancy, childbirth, and related medical conditions. This notice is to be in a form and manner to be determined by the [New York City Human Rights] Commission and must be provided to all employees within 120 days after January 30, 2014 as well as all new employees at the commencement of employment. We are waiting for the New York City Commission on Human Rights to draft sample notices, but they have issued the poster that needs to be placed in the workplace. In addition, we suggest that all EEO policies (covering NYC workplaces) such as those found in employee handbooks be amended to include pregnancy as a protected category. (Attached as Exhibit). Employees who believe that their employer has violated this amendment to the CHRL can file a complaint directly in court or with the New York City Human Rights Commission. If a court or the Commission determine that the employer has violated the amendment, the employer could be liable for back pay, front pay, compensatory damages, punitive damages, attorneys fees, and costs. Accordingly, employers should work with counsel to ensure that they provide reasonable accommodations to pregnant employees and otherwise comply with the CHRL. Conclusion These two new laws will certainly increase costs for all New York City employers. These costs are not just financial. Indeed, there will be additional administrative burdens for New York City employers, such as covering employee shifts on short notice and tracking employee usage of sick days as well as ensuring that employees receive the proper notices. These laws could also subject unwary employers to fines and penalties if they fail to properly comply. Accordingly, employers must be diligent in ensuring that they continue to comply with applicable law.

7 6 NEW YORK CITY PAID SICK LEAVE & PREGNANCY ACCOMMODATION Coverage Questions & Answers Which employers are covered by the New York City Earned Sick Time Act (the Act )? All employers who have employees who work in New York City are covered by the Act except for federal, state and local government employers. Prior versions of the bill excluded small employers, are small employers still excluded? No, small employers are covered. All employers with five or more employees must provide paid sick leave to their New York City employees. Which employees are covered by the Act? All employees who work in New York City are covered by the Act unless: the employer is a governmental entity the employee works less than 80 hours during the year; the employee performs works as part of a collegiate work-study program the employee is compensated through a scholarship or grant provided by an educational institution the employee is an hourly professional employee who is licensed under the New York State Department of Education under the direction of the New York State Board of Regents; or the employee is performing work in a transitional job program under the New York State Social Services Law as a condition to receiving public assistance benefits. Does an employer have to provide sick leave to part-time employees? Yes as long as the employee works at least 80 hours per year. However, the employer does not have to provide sick leave until the employee has worked for at least 120 days and for at least 30 hours during those 120 days. Are employees who live outside New York City but work in New York City covered by the Act?

8 7 Yes, the Act covers virtually all employees who work in New York City irrespective of where they live. Does an employer have to provide sick leave to employees who work out of state but live in New York City? No, if the employees work out of state, they are not covered by the Act. In fact, if the employees work outside of New York City but in New York State, such as in Westchester or on Long Island, they are not covered by the Act. For example, if a server lives in Queens County, but works at a Nassau County restaurant, the employer does not need to provide sick leave to that employee. Does the employer have to provide sick leave to those employees who telecommute for a New York City based business. For example, a bookkeeper who performs work for a New York City restaurant but who works from home in Westchester County? This is an open question. Because the employee works outside of New York City, a strong argument could be made that the employee is a non-new York City employee and therefore not covered by the Act. However, if the employer treats that employee as a New York City employee, for example by making withholdings for New York City income tax, then the City may claim that the employee is based in New York City even though he or she works in Westchester. Does an employer have to provide sick leave to those employees who only work sporadically, such as once a month at a catering event? If the individual is employed for 80 hours during any calendar year, whether the perform work on a full-time, part-time or sporadic basis, they are covered by the Act. If the employee performs less than 80 hours per year, the individual is not covered by the Act. Paid Sick Leave Is sick leave paid or unpaid? Starting April 1, 2014, employers with 5 or more employees must provide paid sick leave to their employees. How does the Act determine whether an establishment employs 5 or more employees? Is it on the date that the Act is implemented? Some other time? The size of the employer s workforce is determined by reviewing the average number of employees per week that the employer employed during the prior calendar year.

9 8 If an employer recently opened its business and therefore did not employ anyone in the prior calendar year, but now has 30 employees, does that employer need to provide paid or unpaid sick leave to tis employees? This remains an open issue and we will need more guidance from the City in order to answer it. The Act determines the 5 employee threshold based on the prior calendar year; therefore, based on a strict reading of the statute, it would appear that you would not need to provide paid sick leave. However, these laws are generally construed in favor of the employees and if it could be proved that you generally employ more than 5 employees since you opened, there is a strong argument that you would have to provide paid sick leave to your employees. If a restaurant group owns two small restaurants, each with 4 employees; does it have to provide paid sick leave or unpaid sick leave to its employees? Paid sick leave. The Act states that chain businesses will be treated as one large employer and the employees of all of the entities that make up the chain business will be aggregated to determine if the 20 (or 15) employee threshold is satisfied. A chain business is a group of establishments that share a common owner or principal who owns at least 30% of each establishment where such establishments: (i) engage in the same business; or (ii) operate pursuant to a franchise agreement with the same franchisor. Assuming the employer has to provide paid sick leave to its employees, how much are the employees to be paid? The pay is based on the employee s regular wage rate in effect at the time that he or she takes sick leave. If an employee is usually paid the tipped minimum wage, then he or she must be paid the regular minimum wage when the employee takes sick leave under the Act. How much does an employer have to pay servers, bussers and other employees that receive most of their compensation in the form of gratuities? It appears that the Act only requires the employer to pay the employee his or her base wages. Therefore, you would only need to pay such employees their regular wage (i.e., at the full minimum wage of $8.00 per hour) excluding any gratuities that they earn. These employees must be paid at the full minimum wage of $8.00 per hour rather than the tipped minimum wage of $5.00 per hour because when employees take paid sick leave they are not performing any tipped work and therefore the tip credit does not apply.

10 9 Are service employees that earn gratuities paid at the tipped minimum wage when they take paid sick leave? No, you would pay them at the regular minimum wage when they take paid sick leave. Does paid leave count towards hours worked when determining whether an employee is entitled to overtime? No. Accrual of Leave Time What is the maximum amount of leave an employer is required to provide under the Act? Employees cannot take more than 40 hours of leave time assuming they have accrued such time. How do employees earn leave time? Employees earn leave time at the rate of 1 hour of leave time for every 30 hours of work time up to a maximum of 40 leave hours. Are executives, managers and supervisors covered by the Act? Yes. If the employer does not keep track of the hours worked by its managers, how does it determine when the managers have accrued leave time? The Act assumes that all employees who are paid on a salary basis, such as managers, work 40 hours per week. However, if the employer can prove that a salaried worker works less than 40 hours per week, then the lower figure can be used in computing sick leave accrual for that worker. When do employees begin to accrue leave time? Employees begin to accrue leave time on the day that the law becomes effective or the commencement of employment, whichever is later. However, under the Act, an employee cannot take any accrued sick leave until he or she has been employed for at least 120 days. As this is an accrued benefit, does the employer have to pay out departing employees for their accrued but unused sick leave hours? No. The Act specifically states that employers do not have to pay departing employees for their accrued but unused sick leave hours.

11 10 Can employee who does not take any accrued sick leave during the year, bank more than forty hours in year two. No. At year end, the employer has an option. The employer can either pay out all accrued but unused sick leave to the employees or the employer can permit employees to carry over accrued sick leave from year to year up to a maximum of 40 sick leave hours. However, employers are not required to provide more than 40 hours of sick leave to an employee during any calendar year. Therefore, if an employee accrues 40 hours during a calendar year and does not use any of the time, the employer can permit the employee to carry over the 40 hours into the next calendar year, but the employee cannot accrue any additional time. Can the employee take sick leave before it is accrued? No, except in one circumstance. If the employer pays out its employees at year end for accrued but unused sick leave, the employee is permitted to take sick leave for up the number of hours that were paid out at year end before the employee has accrued that time in year two. For example, if the employee at year end has accrued 20 hours of leave time and the employer pays out the employee for such 20 hours, at the beginning of the second year, the employee could take up to 20 hours of sick leave even though the employee has not yet accrued an additional 20 hours. For this reason, most employers will not pay out accrued but unused sick leave at year end. What about employees that depart and then are re-hired, how do these employees accrue time? If the separation of employment is greater than 6 months, the Act treats the employee as a new employee. When the separation of employment is 6 months or less, any time that the employee previously accrued must be reinstated unless the employer paid the employee for any accrued but unused leave time when the employee originally departed. If an employee has not accrued sick leave, must the employer provide him or her with leave? Under the Act, no, the employer would not have to provide any sick leave. However, the employee may be entitled to leave under other leave laws (e.g., FMLA) or as a reasonable accommodation under the ADA, New York State Human Rights Law or New York City Human Rights Law. Do breaks and meal periods count towards work time in determining sick leave accrual. If the break time or meal period is 30 minutes or more and no work is performed during that time, then the time is not considered work time and does not have to be counted to determine sick leave accrual.

12 11 If an employee works at two separate locations operated by two separate entities but both are part of the same restaurant group, are the employees hours worked at both locations combined for accrual purposes? Yes. If an employee works at two separate locations that are part of the same restaurant group, the entire restaurant group will be deemed one large employer under the Act and all time worked for any entity in the group must be aggregated to determine the number of sick leave hours an individual employee has accrued. Use of Leave Time Under what circumstances can employees use leave time? Employees can use leave time for: (i) any sort of illness or medical appointment; or (ii) the care or medical appointment of a close family member (e.g., spouse, child, parent, domestic partner, the child or parent of the employee s spouse or domestic partner, sibling, grandparent, or grandchild). When can employees take leave under the Act? Employees can begin to take leave under the Act after they have been employed for at least 120 days (i.e., 4 months). Therefore, even if an employee has accrued sick leave time, he or she may not take the leave until the employee has been employed for approximately four months. The employee, however, may be entitled to leave under another law or as a reasonable accommodation depending on the circumstances. Can employers require employees to provide advance notice of sick leave? If the sick leave is foreseeable the employer can require the employee to provide up to 7 days advance notice. However, if the leave is unforeseeable (as will occur in the vast majority of cases) the employee only has to give as much notice as is practicable a term that is undefined in the Act. May the employer require the employee to find a replacement for the missed shifts as is common in the hospitality industry? No. The employer cannot require the employee to find a replacement for his or her missed shift. In fact, if the employer does so, it would be a clear violation of the Act. Changing Schedules Can employees swap shifts so that the employee does not have to take sick leave? Employees are allowed to swap shifts under the Act as long as they do so voluntarily and without any influence or coercion from management.

13 12 Can employers require employees to work extra time in order to make up the time lost because the employee took sick leave? No. The employer cannot compel the employee to work extra time because the employee took sick leave. However, the employee can voluntarily agree to work additional time to make up for the time taken for sick leave during the 7-day period immediately preceding or following the sick leave. Employer should be cautious as the employee s agreement to perform the extra work must be truly voluntary and cannot be pressured, coerced, or influenced by the employer. Other Employer Leave Policies If the employer already provides paid leave to its employees, does the employer also need to provide leave under the Act? If an employer provides at least 40 hours of other paid leave to its employees, such as paid time off, paid vacations, or paid personal days, and employees can use such paid leave to care for themselves or a close family member than the employer is not required to provide additional paid sick leave under the Act. What if the employer provides more than 40 hours of paid time off and the employee uses all of their paid time off for vacation and then gets sick, can the employee take sick leave under the Act? No. Because the employer provided more than 40 hours of paid time off, which the employee could use for any purpose, the employer does not need to provide additional time under the Act to those employees that used all such paid time off. The employee, however, may be entitled to leave as a reasonable accommodation or under other leave laws depending on the circumstances. If an employee goes out on FMLA leave, can they use accrued sick leave in order to be paid during a portion of the FMLA leave? Yes, the Act permits sick leave to be taken concurrently with other leaves. Should the employer add sick leave to its employee handbook? Yes, the employer should add sick leave to its employee handbook and the handbook should also note that sick leave will run concurrently with other employer-provided leaves. Documentation & Notices When an employee takes leave, can the employer insist that the employer provide a doctor s note documenting that the leave was taken in accordance with the Act?

14 13 Under the Act, if the employee is absent for more than three consecutive work days, the employer can require the employee to provide a note from the employee s health care provider that the leave was authorized under the Act. What if the employee takes sick leave for less than three consecutive work days? Because, the Act states that the employer can request the note only after the employee has been out for more than three consecutive days, i the employer cannot request such a note when the employee has been out for three consecutive work days or less. Under the Act, can the employer request anything in writing from the employee that he or she took sick leave or that it was necessitated by a health condition? Yes. The employer can request the employee to submit written confirmation that the employee used sick leave pursuant to the Act as long as the employer does not require that the confirmation come from a doctor or other health care provider. If the employer knows that the employee took sick leave because of a communicable disease can the employer require the employee to provide information from a health care provider that the employee is fit to return to work? Under the Act, if the employee takes sick leave for 3 consecutive days or less, the employer could not request such documentation. However, other laws and regulations, such as Department of Health regulations, may permit or even require it. In such event, the employer can request such information but should do so by specifically referencing the applicable law or statute that permits or requires it. However, this is a tough area that will need to be worked out. If an employee is injured on the job and takes sick leave, can the employer request documentation from the health care provider? Yes as long as the employer specifically states that it needs the information in order to comply with Workers Compensation or some other applicable law. Under the FMLA, an employer is permitted to obtain information from the employee s health care provider in order to verify that the leave is permitted under the FMLA, in such circumstances, can the employee require documentation from the employee s health care provider? Yes, provided that the employer is requiring the information under the FMLA and not under the Act.

15 14 If an employer receives information about an employee s health condition or the health condition of a family member are there any special rules concerning that information? Yes, the information must be kept confidential and can only be disclosed to the affected employee or as otherwise required by law. Must the employer provide its employees with notice about their rights under the Act? The Act also requires employers at the commencement of employment to provide employees with written notice of the employee s rights to sick leave, including the accrual and use of sick leave, the applicable calendar year as determined by the employer, the right to be free from retaliation, and the right to file a complaint with the New York City Department of Consumer Affairs. If the employer fails to provide the notice, the employer can be fined up to $50 for each employee that notice was not provided but should have been. What about current employees, does notice need to be provided to them? The Act does not require the employer to provide notice to current employees, only new employees. However, best practices suggest providing all employees with notice when the Act goes into effect. In what language must the notice be provided? This notice must be provided in English and the employee s primary language provided that the Department of Consumer Affairs has made available a translation of the required notice in the employee s primary language. What if the employer posts the notice in the workplace? The Act states that the notice may also be conspicuously posted at an employer s place of business in an area accessible to employees. It is unclear whether the employer can post the notice in lieu of providing written notice to each employee at the commencement of employment. However, as these statutes are generally construed in favor of the employee, it is likely that the employer must provide written notice to each individual and in addition, at the employer s option, the employer can also post the notice. Should we add the notice to the new hire paperwork? Yes. Where can we get a sample notice? The Department of Consumer Affairs is supposed to provide sample notices. Until it does so, members can obtain sample notices from the Alliance.

16 15 Collective Bargaining Are there any special provisions for unionized workers? Yes. The Act will not apply to those employees covered by collective bargaining agreements if the collective bargaining agreement expressly waives the Act s provisions and provides a comparable benefit to the employees, such as other paid time off. However, the Act does not go into effect for unionized workplaces until the expiration of the current collective bargaining agreement. If, on April 1, 2014, there is no collective bargaining agreement or the current agreement has expired and the parties are in negotiations, the employer must comply with the requirements of the Act starting on April 1, Recordkeeping Does the Act impose any additional recordkeeping requirements on employers? Yes. In addition to providing notice to new employees about their rights under the Act, employers are required to keep and maintain for three years records documenting the employer s compliance with the Act. Can an employer keep these records electronically? Yes, as long as the employer is able to provide the records to the Department of Consumer Affairs upon request. Retaliation What constitutes retaliation? Under the Act, retaliation is any adverse employment action taken by the employer against an employee because the employee took or requested leave under the Act, filed a complaint under the Act, participating in a government investigation or proceeding into an alleged violation of the Act, or otherwise exercised or attempted to exercise any right guaranteed by the Act. An adverse employment action includes any threat, discipline, demotion, discharge, suspension, reduction in work hours, or any other action that has a tangible effect on the terms and conditions of employment. Can an employer discipline an employee who misuses leave under the Act? Yes if the employee takes leave for a purpose other than those set forth in the Act.

17 16 Enforcement Answer How is the Act enforced? The Act will be enforced by the Department of Consumer Affairs. Can employees file actions against their employers for alleged violations of the Act? No, they can only file complaints with the Department of Consumer Affairs; they cannot file actions in court. How long do individuals have to file complaints for alleged violations? Individuals have 2 years from the date that they knew or should have known of the alleged violation to file a complaint. What are the penalties if an employer violates the Act? If an employer violates the law, the penalties differ depending upon the type of violation. If an employer fails to provide paid sick leave to an employee (where such paid leave is required), the employee will be entitled to three times the wages that should have been paid or $250, whichever is greater. If an employee requests sick time and that request is unlawfully denied by the employer or the employer requires the employee to find a replacement to cover the employee s shift, the employee can recover $500. If an employer retaliates against the employee for exercising his or her rights under the Act, the employee is entitled to back pay and benefits, appropriate equitable relief (e.g., removal of warning, reinstatement) and $500, which is increased to $2,500 when the employee was unlawfully discharged. Further, the Department of Consumer Affairs can also recover civil penalties starting at $500 for a first violation of the Act and increasing thereafter. However all fines for employers with less than 20 employees will be waived until October 1, Implementation Date When does the law go into effect? The law goes into effect on April 1, 2014 unless there is a collective bargaining agreement in place in which case the Act will go into effect on the day the current collective bargaining agreement expires. Pregnancy Accommodation If we provide a leave of absence for a pregnant employee, does it need to be paid?

18 17 No. However, do not forget to consider whether the employee may also be eligible for Family and Medical Leave, as well as short term disability the statutes are all overlapping. Should we hang up the poster if we include reference to pregnancy in our EEO policy? Yes, the poster should be hanged on the bulletin board with other employment law posters. In addition, until the New York City Commission on Human Rights creates a sample notice, we recommend giving a copy of the poster to all new employees as part of their new hire paperwork. Should employers update their EEO policies and employee handbooks? Yes, employer should update their EEO policies and employee handbooks to specifically reference pregnancy as a protected characteristic under the law.